Some recent cases on witness statements

There have been three recent cases that each provide some developments on the law relating to witness evidence that will be useful for practitioners in judicial review proceedings, writes Charles Bishop.

R (Suez Recycling And Recovery UK Ltd) v Environment Agency makes clear that claimants may file witness statements from other organisations without those organisations applying to be interveners under CPR r.54.17. R (Elliott Associates LP) v The London Metal Exchange explains the approach that should be followed when witness evidence is unsupported by contemporaneous documents. And in TUI UK Ltd v Griffiths, the Supreme Court held that a trial judge is not generally entitled to dismiss the evidence of an expert where that expert had not been cross-examined and there was no contrary expert evidence, and identified some exceptions to this principle.

The principles stemming from these judgments are discussed in detail below.

Claimants are permitted to file witness statements from other organisations without those organisations applying to be interveners

R (Suez Recycling And Recovery UK Ltd) v Environment Agency [2023] EWHC 3012 (Admin)

CPR r.54.17 provides for the court’s powers to receive evidence or representations from “any person” in judicial review proceedings, which is the provision under which interventions from non-parties are granted. Claimants in judicial review proceedings – especially those in strategic cases – may often find it desirable to file witness statements given by those in NGOs, charities and pressure groups to provide evidence of wider or systemic issues to which the claim relates. That evidence is often said to be given “on behalf of the claimant” rather than by the organisation applying to intervene.

In Suez Recycling and Recovery, Fordham J held that there is no obligation to apply for such witness evidence to be admitted under CPR r.54.17. In so doing, he also provided some useful comments on the role of interveners generally:

“6. A satellite issue arose regarding a witness statement of Jacob Hayler, Executive Director of the Environmental Services Association. The ESA is the trade body representing the resource and waste management industry in the UK. That statement describes the regulation of operators, refers to Agency and Government consultations, and addresses the topic of challenging CAR scores. The Hayler statement is described as "filed on behalf of the claimant". Mr Lewis KC for the Agency raises a point of principle. He says that, in principle, if material of this kind is to be admitted in judicial review, it ought to be in the form of an intervener's application pursuant to CPR 54.17(1)(a), a rule which permits any person to apply for permission to file evidence in judicial review proceedings. He says that is what procedural rigour requires.

7. I cannot accept that submission. If a party to judicial review proceedings – claimant, defendant or interested party – considers that a wider evidential perspective is relevant and can assist them and the Court, derived from some other person or organisation who can provide that perspective, it is open to that party to seek to adduce that evidence and to maintain reliance on it. It is open to that other person or organisation to choose to assist in that way. Unless adduced at the outset of the case, a direction or permission will be required. Principles of promptness, relevance and admissibility will always be applicable. But CPR 54.17 does not have to be used. That rule is a mechanism for a third party to take its own initiative, and be heard as an intervener in the case, including by putting in a witness statement. Where permission for the intervener course is granted, the intervener knows it will be heard on the issues in the case, independently of whether any party would welcome this, and independently of any action by a party. To illustrate that point, having received the Hayler statement, Suez could have chosen not to rely on it, not to make or pursue its application to adduce it, not to include it in the bundle or not to invite my attention to it. A person or organisation who provides a statement for a party to use, rather than seeking a direct CPR 54.17 route to the Judge, accepts this.”

Approach to absence of contemporaneous documents

R (Elliott Associates LP) v The London Metal Exchange [2023] EWHC 2969 (Admin)

In judicial review proceedings, defendants often file evidence to explain, contextualise or expand on decisions they have taken, sometimes by reference to contemporaneous documents and sometimes without such reference.

The courts have developed a body of principles to govern such evidence, as generally evidence arising after a decision has been taken is not relevant or admissible in judicial review proceedings.

In Elliott Associates, the court considered a submission that witness evidence which was unsupported by contemporaneous documents should not be relied on. The court dismissed this submission, but in so doing summarised some of the relevant law and explained the approach to be followed which may be useful in other cases:

“55. On behalf of the Defendants, we were provided with witness statements made by Mr Chamberlain, Mr Farnham, Mr Cressy, Mr Jones, and Ms Combe. The Claimants criticised the evidence of these witnesses, saying that their statements were made long after the event, with the assistance of lawyers, and we should not rely on them. We were referred to the unanimous judgment of the Court of Appeal in R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197 at [125], where emphasis was placed on the caution that must be exercised in relation to evidence that has come into existence after the decision under review was made; and to R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin) at [259]. These authorities highlight the significance of contemporaneous documents and suggest that the Court should generally prefer the contemporaneous record of the decision-making. Indeed, a witness statement that is directly in conflict with the contemporaneous documents will not generally be admitted: R (United Trade Action Group) v Transport for London at [125(3)], citing R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290. However, where the contemporaneous documents do not make matters clear, the decision-maker should explain them in evidence: Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 at [86]. If the claimant wishes to challenge such evidence, he should apply to cross-examine, failing which the evidence will be accepted unless it "cannot be correct": R (Singh) v Secretary of State for the Home Department [2018] EWCA Civ 2861 at [16].

56. Here, the relevant decisions were taken at relatively informal meetings, held remotely at short notice and reasonably early in the morning of 8 March 2022. No formal notes were taken. It was both sensible and necessary for Mr Chamberlain and the other main protagonists to state what they can recall of the discussions at the meetings, as well as the events leading up to them and their immediate aftermath. The Claimants did not apply to cross-examine them.

57. Although there was no direct contemporary record, these witnesses were sometimes able to refer to emails or other contemporaneous materials that helped to anchor their evidence and seems likely to have refreshed their recollection in an entirely appropriate manner. There were no contemporaneous materials that the Claimants were able to point to as casting doubt on the witnesses' reliability. There are some passages where, to some extent, the statements contain evidence that has the flavour of an attempt to reconstruct what the witness thinks his or her thought-process must have been. This was less helpful to us. However, we did not find it difficult to sift the wheat from the chaff.”

Expert evidence must be challenged if it is to be dismissed by the judge

TUI UK Ltd v Griffiths [2023] UKSC 48

In judicial review proceedings, evidence of opinion can usually only be given by an expert in accordance with CPR Part 35. Generally, such evidence is not reasonably required, but there are some limited recognised (and non-exhaustive) exceptions, namely:

1. evidence showing what material was before or available to the decision-maker;
2. evidence relevant to the determination of a question of fact on which the jurisdiction of the decision-maker depended;
3. evidence relevant in determining whether a proper procedure was followed;
4. evidence relied on to prove an allegation of bias or other misconduct on the part of the decision-maker;
5. evidence (which is incontrovertible) to explain technical matters where a decision is challenged on the ground of irrationality where an understanding of technical matters is needed to enable the court to understand the reasons relied on in making the decision in the context of a challenge to its rationality; and
6. evidence in human rights cases to demonstrate all other material (prior to the decision being taken) to which, with proper enquiry, the defendant had or could reasonably be expected to have had access

See generally: R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649 at [38]-[41] and R (Gardner) v Secretary of State for Health and Social Care [2021] EWHC 2946, [2022] ACD 8 at [20]-[22].

In TUI UK Ltd v Griffiths, the Supreme Court held that a trial judge is not generally entitled to dismiss the evidence of an expert where that expert had not been cross-examined and there was no contrary expert evidence. This would render the trial unfair. The following were identified as exceptions to this principle:

1. the matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain;
2. the evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference;
3. there may be a bold assertion of opinion in an expert’s report without any (as opposed to inadequate) reasoning to support it;
4. there may be an obvious mistake on the face of an expert report;
5. the witnesses’ evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report;
6. an expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify his or her report (e.g. if faced focused questions in written CPR r.35.6 questions);
7. a failure to comply with the requirements of CPR PD 35 in certain cases.

The TUI case concerned an ordinary civil trial under Part 7 of the CPR and so much of it will not be applicable to judicial review proceedings. It is rare that disputes of fact arise in judicial review proceedings: see recently F v Surrey County Council [2023] EWHC 980 (Admin); [2023] 4 WLR 45 at [46] per Chamberlain J. Consequently, given that expert evidence is already rare in judicial review proceedings, it is rarer still where there may be a dispute over that evidence. Cross-examination is thus exceptional in judicial review proceedings.

However, the Supreme Court’s decision in TUI may prove to be important in those rare cases where expert evidence may prove influential in the judge’s determination of the issues. Parties will be well-advised to consider whether that evidence may now need to be challenged (whether by an exceptional application to cross-examine, or by the provision of alternative expert evidence) in those rare cases. That may particularly be the case where expert evidence is sought to be adduced in the fifth category identified above, i.e. incontrovertible evidence in irrationality cases.

Charles Bishop is a barrister at Landmark Chambers.